Noman v. Immigration Department and Another

HCAL 1013/2026

[2026] HKCFI 4985

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1013 OF 2026

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BETWEEN

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D E C I S I O N

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1. Introduction

1.1The Applicant is subject to a Removal Order made on 6 November 2024. He has been held in immigration detention since 4 August 2025 pursuant to section 32(3A) of the Immigration Ordinance Cap 115 (“Ordinance”). As at the date of the hearing before me, he has been detained for 394 days.

1.2This is my decision on the Applicant’s application for a writ of habeas corpus made on 2 June 2026. At the hearing, the Applicant appeared in person, with the benefit of an interpreter. Mr Eric Ko, Senior Government Counsel, appeared for the Director of Immigration (“Director”).

2. Background

2.1The Applicant is a Pakistani national. On 10 July 2024, he surrendered to the Immigration Department, claiming that he had entered Hong Kong illegally from the Mainland on 8 July 2024 and that he had lost his passport.

2.2On 9 September 2024, the Applicant indicated his intention a lodge a non-refoulement claim (“NRC”). He was subsequently released on recognizance on 3 March 2025.

2.3As I understand the materials, whilst on recognizance, the Applicant did not commit any criminal offence and had complied with his recognizance conditions.

2.4In terms of local connection, the Applicant claims that Ms Parveen Rahat (“Ms Rahat”), a resident in Hong Kong, has agreed to act as his guarantor. The Immigration Department has contacted Ms Rahat but she has not confirmed her willingness to act as the Applicant’s guarantor.

3. NRC and related proceedings

3.1The Applicant’s NRC was rejected by the Director on 7 November 2024. His subsequent appeal/petition to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office was allowed to be filed out of time but dismissed on 28/1/2025 (“TCAB Decision”).

3.2On 17 February 2025, the Applicant commenced HCAL 446/2025 for leave to apply for judicial review against the TCAB Decision (“JR Leave Application”).

3.3On 12 June 2025, the Court of First Instance dismissed the JR Leave Application and his subsequent appeal was dismissed by the Court of Appeal on 27 April 2026.

3.4Following the commencement of the present detention, on 6 August 2026, the Applicant applied to the Court of Appeal for leave to appeal to the Court of Final Appeal.

4. The present detention and its reviews

4.1Throughout the present detention, the Applicant has persistently indicated his unwillingness to return to his home country and refused to cooperate in completing the reentry formalities for an emergency document to be issued to him.

4.2Despite the Applicant’s refusal to cooperate, the Immigration Department continued to liaise with the Consulate General of the Islamic Republic of Pakistan (“CG”) to explore whether a travel document could be issued. Eventually, on 29 January 2026, CG issued an emergency travel document (valid for 30 days from the date of issuance) to the Applicant (“ETD”).

4.3As at the commencement of the present detention on 4 August 2025, there was no longer any legal impediment to the Applicant’s removal by reason of the Updated Removal Policy following the dismissal of the JR Leave Application on 12 June 2025. With the issuance of the ETD, the remaining practical impediment had also been removed.

4.4A repatriation operation was therefore arranged to take place on 25 February 2026 (“1^st Repatriation Operation”), but it had to be aborted as a result of the Applicant’s emotional refusal to cooperate.

4.5Between 25 February 2026 and the commencement of the present proceedings on 2 June 2026, the Applicant continued to express his unwillingness to return to his home country.

4.6As matters presently stand, the validity of the ETD has been further extended on 6 August 2026 to 6 February 2027 and a further repatriation operation has been scheduled to take place on 4 September 2026, a few days after the present hearing (“2^nd Repatriation Operation”).

4.7In the latest review of the present detention conducted on 3 August 2026, the Applicant’s continued detention was considered to be warranted by reason of the following broad grounds:

(1)  There was no legal impediment to the Applicant’s removal;

(2)  The validity of the ETD was in the process of being extended;

(3)  There was a risk of the Applicant absconding given his uncooperative attitude and his resistance which frustrated the 1^st Repatriation Operation;

(4)  The present detention had been prolonged by the Applicant’s own unreasonable behaviour;

(5)  The Applicant did not have any local connection and Ms Rahat did not confirm her willingness to act as the Applicant’s guarantor;

(6)  There were no other circumstances in favour of the Applicant’s release.

5. The Applicant’s submissions

5.1The Applicant’s written materials may be summarized as follows:

(1)  His NRC has not been finally determined as his application for leave to appeal to the Court of Final Appeal remains extant;

(2)  He has made a request to make a subsequent claim (“SC Request”);

(3)  He does not have a criminal record and undertakes that he will abide by the law;

(4)  He offers HK$4,000 as bail money and Ms Rahat as his guarantor;

(5)  He suffers emotional and psychological trauma for being unlawfully detained;

(6)  He fears for his own safety if returned to his home country and this is the reason for his refusal to cooperate;

(7)  He promises that he will comply with all recognizance conditions;

(8)  He asks for time to await the final resolution of his NRC and to resolve his problems at home;

(9)  Overall, the period of his detention has become unreasonable.

5.2At the hearing, the Applicant confirmed the accuracy of the above summary. He supplemented by reiterating that he would like more time to resolve the problems at home or to make arrangements so that he can relocate elsewhere.

6. The applicable principles

6.1The applicable principles are set out in Harjang Singh v Secretary for Security [2022] 4 HKLRD 99. I have in particular borne in mind the summary set out at §164 thereof.

6.2I remind myself that the burden is on the Respondent to an application for a writ of habeas corpus to justify the lawfulness of the Applicant's detention.

6.3Under Section 32(4A) of the Ordinance, the detention of a person shall not be unlawful by reason of the period of the detention if that period is reasonable having regard to all the circumstances that justify its length, including (1) whether the person's removal is directly or indirectly prevented or delayed by any action or lack of action of the person, (2) whether the person poses, or is likely to pose, a threat or security risk to the community, (3) whether the person's removal is directly or indirectly prevented or delayed by any action or lack of action of the person, including the person not obtaining, or not providing assistance to obtain, any authorization from the relevant authorities of a place outside Hong Kong that is required for the person's entry to that place and (4) factors that directly or indirectly prevent or delay the person's removal that are not within the control of the Director.

6.4The Court of Appeal has provided guidance in Johnson Benjamin v Director of Immigration & Anor [2023] HKCA 1368 on, inter alia, how the court ought to approach a detainee's own unreasonable behaviour or conduct in assessing the reasonableness of the length of his detention. It is stated at 29(3):

“In our view, in general, any period of a detention which is caused, necessitated or prolonged by a detainee's own unreasonable behaviours or conducts should not be counted or regarded as an unreasonable period of detention for the purpose of determining whether an originally lawful detention has become unlawful, unless there are other circumstances to show otherwise. This is so, as if otherwise, it would result in an absurd situation where the more unreasonably and uncooperatively a detainee behaves in seeking to frustrate or delay the procedures or process necessary to prepare for his removal, the more likely he is to be released. That cannot be the intention of the Hardial Singh principles.”

6.5In particular, on the issue of a detainee's refusal to cooperate in completing reentry formalities, Johnson Benjamin §37 observed as follows:

“… In our view, even if there is an ongoing non-refoulement claim, there is no reason in principle why it is not reasonable to expect an applicant to cooperate with the relevant authorities to obtain the necessary travel document to facilitate his removal once the non-refoulement claim is disposed…”

7. Analysis

7.1During the present detention, the Applicant is and has been detained pursuant to the section 32(3A) of the Ordinance. It follows therefore that there is and has been prima facie lawful authority to detain the Applicant. The question which falls for determination is whether the detention has become unreasonable in all the circumstances, and hence unlawful. The starting point is the period of detention, namely 394 days, against which the various other factors must be weighed and balanced.

7.2I accept that throughout the present detention, the intention of the Director is to remove the Applicant and that has been the only purpose of the Applicant’s detention. HS1is satisfied. I also accept that the Director has acted with diligence and expedition to effect the Applicant's removal. HS4 is satisfied. The foregoing is amply demonstrated by the attempts made for the issuance of the ETD to the Applicant and the arrangements made to put in place the 1^st Repatriation Operation (which had to be aborted as a result of the Applicant’s refusal to cooperate) and the 2^nd Repatriation Operation to take place following the resolution of the present application.

7.3As regards the Applicant’s fear for his own safety if repatriated, as has been stated and repeated in many previous decisions, an application for a writ of habeas corpus is not an opportunity for the applicant to continue to assert the concerns underpinning his NRC and the court in his habeas corpus application will not look at the merits of any such claim.

7.4Contrary to the Applicant's submissions, there is no record of him having made the SC Request. At the hearing, the Applicant confirmed that he had not made the SC Request but he intends to do so. By reason of the Updated Removal Policy, the currently extant application for leave to the Court of Final Appeal does not create a legal impediment to the Applicant’s removal.

7.5In assessing whether the period of detention has been prolonged as a result of the Applicant’s own behaviour, I have already set out the relevant considerations at §§4.1 to 4.6 above. Had the Applicant cooperated, he would have been released from detention (albeit in the form of removal from Hong Kong) well before the date of the 1^st Repatriation Operation, or in any event, at the latest by that date.

7.6In the light of the fact that the Applicant has no criminal records, I  am prepared to proceed on the bases that he does not present a threat or security risk to the community and that the risk of him committing a criminal offence is marginal.

7.7Whilst the Applicant does not have a history of absconding, I accept the Respondent’s submissions that the risk of him absconding is real, given his persistent refusal to return to his home country and his frustration of the 1^st Repatriation Operation. In my view, such risk is plainly heightened by the fact that the 2^nd Repatriation Operation is to take place in a few days’ time, and such risk, if it materializes, would defeat the purpose for which the power of detention is conferred. Moreover, contrary to the Applicant’s suggestion, Ms Rahat has so far not confirmed her willingness to act as his guarantor.

7.8Insofar as the Applicant relies on his health conditions, the Applicant's medical conditions do not have the effect of altering her continued and lawful detention to become unlawful: Ngo Quang Duy v Director of Immigration [2022] HKCFI 177 §30.

7.9Overall, weighing the period of detention against all the other factors, I am satisfied that HS2 and HS3 are met.

8. Conclusion

8.1By reason of the above matters, I am satisfied that the Applicant's detention, and likely foreseeable future period of detention (at least until 2^nd Repatriation Operation) has been and will remain lawful. I wish to impress upon the Applicant that flatly refusing to cooperate in the upcoming 2^nd Repatriation Operation, in and of itself, will not assist his cause, as any resulting prolongation of the detention is likely to be viewed the court as having been self-induced.

8.2I therefore dismiss the present application with no order as to costs.

The Applicant, acting in person

Mr Eric Ko (Senior Government Counsel), of Department of Justice, for the Respondents